Scope statements
Agriculture, Trade & Consumer Protection
Subject
Nutrient Management on Farms.
Administrative Code Reference: Chapter
ATCP 50, Wis. Adm. Code (Existing).
Objectives of the rule. This rule may do the following:\
•
Update current nutrient management standards for farms. This rule may substitute, for current nitrogen-based standards, new phosphorus- and nitrogen-based standards adopted by the Natural Resources Conservation Service of the United States Department of Agriculture (NRCS).
- Make other clarifications and updates as necessary.
This rule is related to livestock facility siting rules that DATCP is required to adopt under
2003 Wis. Act 235. DATCP is publishing a separate scope statement for the livestock facility siting rules, and will coordinate the 2 rulemaking proceedings to maintain consistency.
Policy analysis
Under ss.
92.05 (3) (k) and
281.16 (3), Stats., DATCP must adopt rules related to agricultural nutrient management. DATCP has adopted nutrient management rules under ch.
ATCP 50, Wis. Adm. Code to reduce excessive nutrient applications and minimize nutrient runoff that may pollute surface water and groundwater.
Under current rules, farmers must apply manure and other nutrients according to nutrient management plans that comply with the nitrogen-based NRCS nutrient management standard 590 dated March, 1999. NRCS is currently revising its standard. NRCS will likely adopt a new standard, based on phosphorus and nitrogen, in late 2004. DATCP must initiate rulemaking by January 1, 2005 to adopt the new NRCS standard if NRCS has adopted the new standard by that date (see ATCP 50.04 (3) (e) 5., Wis. Adm. Code).
Nutrient management plans may not recommend nutrient applications that exceed amounts required to achieve crop fertility levels recommended by the University of Wisconsin-Extension. Current rules provide certain exemptions. This rule may update and clarify those exemptions.
Under current and proposed NRCS standards, the nutrient content of manure must be determined by laboratory analysis or standard tables. Under current rules, DATCP must certify laboratories that conduct soil analysis, but not laboratories that analyze manure. This rule may require certification of laboratories that analyze manure for purposes of nutrient management on farms.
Policy Alternatives:
If DATCP takes no action, current nutrient management rules will remain in effect. The current rules will soon be outdated, and will not adequately address nonpoint pollution concerns related to phosphorus. State and federal standards will not be consistent.
Comparison to federal regulations
Under the federal Clean Water Act, certain concentrated animal feeding operations are subject to federal regulation as water pollution “point sources." The Wisconsin Department of Natural Resources (DNR) regulates these operations by permit, under authority delegated from the United States Environmental Protection Agency (EPA).
NRCS has adopted nutrient management standards for livestock operations. NRCS does not enforce these as mandatory standards, except for operations that receive cost-share funding from NRCS. However, EPA and the Wisconsin DNR incorporate NRCS standards as mandatory standards for animal feeding operations that are required to hold “point source" pollution discharge permits under the federal Clean Water Act. NRCS will likely adopt a new standard, based on phosphorus and nitrogen, in late 2004.
DNR is currently revising its rules for animal feeding operations that are required to hold “point source" pollution discharge permits from DNR (including concentrated animal feeding operations with 1,000 animal units or more). The new DNR rules will likely incorporate new NRCS nutrient management standards, based on phosphorus and nitrogen, by December 31, 2006.
EPA requires states to identify “impaired" waters that are not expected to achieve water quality standards after implementing required “point source" controls. States must establish allowable levels or total maximum daily loads (TMDLs) for non-point source pollutants, such as sediment and phosphorus, to meet water quality standards in these impaired waters. DNR has identified “impaired" waters in Wisconsin. Under current DATCP rules, DATCP nutrient management requirements first apply to cropland located in “impaired" watersheds on January 1, 2005 and to existing cropland in other areas on January 1, 2008.
Statutory authority
Staff time required
DATCP estimates that it will use approximately 0.6 FTE staff to develop this rule. This includes time required for planning and analysis, rule drafting, preparing related documents, coordinating advisory committee meetings, holding public hearings and communicating with affected persons and groups. DATCP will use existing staff to develop this rule.
Agriculture, Trade & Consumer Protection
Subject
Standards for Siting and Expanding Livestock Facilities.
Administrative Code Reference: Chapter
ATCP 51, Wis. Adm. Code (new).
Policy analysis
•
It requires DATCP to adopt, by rule, standards for the siting or expansion of livestock facilities in this state. DATCP must develop the rules in consultation with a committee of experts appointed by the DATCP Secretary. The DATCP rules may incorporate by reference (and may not conflict with) existing rules related to soil and water conservation, animal waste management and water pollution control. The DATCP rules may also include other standards, as appropriate. DATCP must consider whether the standards (other than the existing standards that are incorporated by reference) are all of the following:
- Protective of public health or safety.
- Practical and workable.
- Cost-effective.
- Objective.
- Based upon peer-reviewed scientific information.
- Designed to promote the growth and viability of animal agriculture.
- Designed to balance the economic viability of farm operations with protecting natural resources and other community interests.
- Usable by local officials.
•It requires local governments (counties, towns, cities and villages) to apply state standards (adopted by DATCP) when granting or denying approval for the siting or expansion of livestock facilities (there are some exceptions). A local government must make a record indicating the basis for its decision. DATCP must adopt rules that spell out all of the following:
- The information that a livestock operator must include in an application for approval, in order to demonstrate that the proposed siting or expansion complies with applicable state standards.
- The information and documentation that a local government must include in its decisionmaking record.
•It creates a livestock facility siting review board with authority to review local decisions for compliance with state standards.
•Establish standards for the siting and expansion of livestock facilities in this state.
•Spell out information that a livestock operator must include in an application for approval, in order to demonstrate that the proposed siting or expansion complies with applicable state standards.
•Spell out information and documentation that a local government must include in its decisionmaking record.
•Include other provisions, if any, that are needed for the implementation of
2003 Wis. Act 235.
DATCP must submit a hearing draft rule to the Legislative Council Rules Clearinghouse no later than the first day of the 12th month following the April 28, 2004 effective date of Act 235. DATCP proposes to adopt and publish a final draft rule by the date on which key portions of Act 235 are scheduled to take effect (18 months after the April 28, 2004).
Policy alternatives
Act 235 requires DATCP to adopt rules as described in this scope statement (rulemaking is essential for the implementation of Act 235). DATCP has some discretion related to the content of the rules. DATCP has not yet determined the rule contents, but will consider policy options in consultation with an expert advisory panel. DATCP will also consult with the advisory committee that recommended the provisions contained in Act 235.
Comparison to federal regulations
This rule may affect animal feeding operations that the Department of Natural Resources (DNR) regulates under authority delegated to DNR under the federal Clean Air Act and Clean Water Act.
Under the Clean Air Act, DNR may require animal feeding operations to meet air quality standards and take certain actions to control air emissions. To the extent that the DATCP rule addresses air quality, it will likely focus on odor and dust management rather than air pollutants that are the subject of Clean Air Act regulations. The DATCP rule may indirectly affect the emission of air pollutants that are subject to Clean Air Act regulation.
Under the Clean Water Act, DNR may regulate all animal feeding operations with 1,000 or more “animal units" by permit, as pollution “point sources." DNR may regulate animal feeding operations with fewer than 1,000 “animal units" in certain situations. The DATCP livestock siting rule will not conflict with Clean Water Act regulations related to operations regulated by DNR.
Federal programs such as the Environmental Quality Incentives Program (EQIP), Conservation Reserve Program (CRP) and Conservation Reserve Enhancement Program (CREP) may provide cost-sharing for livestock producers to meet standards developed under the proposed rule.
Statutory authority
The department proposes to adopt this rule under authority of ss.
93.07 (1) and
93.90 (2), Stats.
Staff time required
DATCP estimates that it will use approximately 3.0 FTE staff to develop and adopt this rule over a projected time period of 18 months. This includes planning and other preliminary activities, coordinating advisory committee meetings, presentation to advisory committee, preparing rule drafts and related documents, holding public hearings, making DATCP Board and legislative presentations, and communicating with affected persons and groups. DATCP will use existing staff to develop this rule. The estimated staff time reflects the complex and sensitive nature of the rule, and its effect on local authority and operations.
Commerce
Subject
Abrasive cleaning of historic buildings.
Objective of the rule. The objective of the rule is to create requirements for the use of abrasive cleaning methods on the exterior of qualified historic buildings. The Department in consultation with the State Historical Society will establish rules for when the abrasive cleaning methods may be used on qualified historic buildings.
Policy analysis
Currently, the Department has no rules for the use of abrasive cleaners on the exterior of qualified historic buildings. In accordance with s.
101.1215, Stats., the Department is required to develop requirements for the use of abrasive cleaners on the exterior of qualified historic buildings, including both commercial buildings and one-and two-family dwellings.
The alternative of not developing rules may result in the risk that qualified historic buildings may be adversely affected by improper cleaning of the exterior surfaces.
Statutory authority
Staff time required
The Department estimates that it will take approximately 100 hours to develop these rules. This time includes meeting with an advisory council, researching and drafting the rule, and processing the rules from public hearing to adoption. The Department will assign existing staff to develop the rule. There are no other resources necessary to develop the rule.
Comparison to federal regulations
An Internet-based search for “abrasive cleaning of exterior surfaces of historic buildings" in the Code of Federal Regulations identified the following existing federal regulations that address abrasive cleaning of historic buildings:
1. 36CFR67–Historic Preservation Certifications Pursuant to Sec. 48(g) and Sec. 170(h) of the Internal Revenue Code of 1986
2. 36CFR68–The Secretary of the Interior Standards for the Treatment of Historic Properties.
3. 36CFR800–Protection of Historic Properties
Under these existing federal regulations, chemical or physical treatments may be used on historic properties for preservation, rehabilitation, or restoration; however, the treatments used must be the gentlest means possible. Treatments that cause damage to historic materials are not to be used. The rules to be developed by the Department of Commerce, in conjunction with the State Historical Society, are not expected to supercede those federal requirements, so no comparison has been made to those requirements.
An Internet-based search for “abrasive cleaning of exterior surfaces of historic buildings" of the 2003 and 2004 issues of the Federal Register did not identify any proposed federal regulations that address abrasive cleaning of exterior surfaces of historic buildings.
Commerce
Subject
Chapters
Comm 61 to
65 and
14, the
Wisconsin Commercial Building Code and
Fire Prevention Code.
Objective of the rule. To update various design and construction related requirements of the Wisconsin Commercial Building Code and any corresponding criteria in the Fire Prevention Code, so that these codes remain consistent with dynamic, contemporary regional and national construction practices and standards relating to public buildings and places of employment.
Policy analysis
The Wisconsin Commercial Building Code – chapters Comm 61 to 65 – and the Fire Prevention Code – chapter Comm 14 – contain standards for the design, construction, operation, maintenance, and inspection of public buildings and places of employment. These chapters, which were developed in 2001 and became effective on July 1, 2002, replaced previous requirements for such facilities with model-code requirements that are substantially in use elsewhere in this country. Those model-code requirements of the International Code Council® and the National Fire Protection Association were initially published in 2000, and were then substantially updated and republished in 2003.
The primary purpose of the Wisconsin Commercial Building Code and of the Fire Prevention Code is to protect public health, safety, and welfare. Periodic review and update of the Codes is necessary to ensure that the Codes still achieve that purpose. In addition, the review and update allows the opportunity to recognize new construction products and practices. The review and update process is expected to span two years during which the 2003 and 2006 editions of model codes will be considered. This update activity may include minor modifications to other Comm codes, in order to update any references in those codes to the corresponding changes to chapters Comm 61 to 65 and 14.
The primary alternative would be to delay the rule-review process. This delay would reduce the public benefits that would otherwise occur by beginning this review now.
Statutory authority
Staff time required
The Department estimates approximately 1500 hours will be needed to perform the review and develop any needed rule changes. This time includes drafting the changes – in consultation with the Commercial Building Code Council and the Multifamily Dwelling Code Council – and processing the changes through public hearings, legislative review, and adoption. The Department will assign existing staff to perform the review and develop the rule changes, and no other resources will be needed.
Comparison to federal regulations
General Building Code
Code of Federal Regulations
An Internet-based search for “federal commercial building code" and “building code regulations" in the Code of Federal Regulations did not identify any existing federal regulations that address these topics.
Federal Register
An Internet-based search for “federal commercial building code" and “building code regulations" in the 2003 and 2004 issues of the Federal Register did not identify any proposed federal regulations that address these topics.
Energy Conservation Requirements
Code of Federal Regulations
The portion of the
Code of Federal Regulations relating to energy conservation for commercial buildings and facilities is found under
10 CFR 420–State Energy Program. The purpose of this regulation is to promote the conservation of energy, to reduce the rate of growth of energy demand, and to reduce dependence on imported oil–through the development and implementation of comprehensive state energy programs. This regulation requires that each state's energy conservation rules for new buildings be no less stringent than the provisions of the 1989 edition of Standard 90.1–
Energy Standard for Buildings Except Low-Rise Residential Buildings from the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE). Each state is required to certify to the Secretary of Energy that it has reviewed and updated the provisions of its commercial code to the specified standard. In Wisconsin, chapter Comm 63–Energy Conservation, establishes the minimum energy conservation requirements for commercial buildings by adopting the 2000 edition of the
International Energy Conservation Code® (IECC) and by including amendments that provide for greater energy savings than specified under the 1989 edition of the ASHRAE 90.1 standard. The Department of Commerce has filed information of compliance with the Department of Energy.
Federal Register
As indicated in the July 15, 2002, Federal Register, the Secretary of the Interior amended the federal energy conservation regulations in 2002 by mandating compliance with the 1999 edition of the ASHRAE 90.1 standard. The Department plans to update the current energy conservation requirements to be consistent with the 1999 edition of the ASHRAE 90.1 standard, and will send either a certification of compliance or a request for an extension to the Department of Energy by July 15, 2004.
Accessibility Requirements
Code of Federal Regulations
The portions of the Code of Federal Regulations relating to accessibility in commercial buildings and facilities include the following:
1.
28 CFR 35–Nondiscrimination on the Basis of Disability in State and Local Government Services
2.
28 CFR 36–Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities
3.
24 CFR 1–Final Fair Housing Accessibility Guidelines
The purpose of
28 CFR 35 and
28 CFR 36 is to require public buildings and commercial facilities, including government–owned and –operated buildings and facilities, to be designed, constructed, and altered in compliance with the accessibility construction regulations specified under the federal Americans with Disabilities Act Accessibility Guidelines (ADAAG). The purpose of
24 CFR 1 is to provide technical guidance on the design and construction of dwelling units as required by the federal Fair Housing Amendments Act of 1988. In Wisconsin, the accessibility requirements for the design and construction of public buildings and places of employment, including government–owned and –operated facilities and dwelling units are found under chapter Comm 62 and the 2000 edition of the
International Building Code® (IBC) as adopted by reference under section
Comm 61.05. The intent of the IBC and the amendments included under chapter Comm 62 is to ensure the Wisconsin construction requirements related to accessibility are substantially equivalent to these applicable federal laws and regulations.
Federal Register
New proposed federal regulations and amendments to established federal regulations for accessibility are found in the following Federal Registers:
The International Code Council® (ICC) is actively monitoring the proposed changes to the federal standards affecting accessibility and will include these changes in the revised and updated 2006 edition of the IBC and the ICC/ANSI A117.1–Accessible and Usable Buildings and Facilities Standard. The Department will need to revise and update chapter Comm 62 and adopt by reference the latest edition of the IBC and the ICC/ANSI A117.1 standard to be consistent with the changes proposed in these federal regulations relating to accessibility.
Safety Standards for Glazing Materials
Code of Federal Regulations
The portion of the
Code of Federal Regulations relating to safety glazing material in commercial buildings and facilities is found under
16 CFR 1201–Safety Standard for Architectural Glazing Materials. This standard prescribes the safety requirements for glazing materials used in architectural products, such as doors, sliding glass doors, bathtub doors and enclosures, and shower doors and enclosures. Currently, IBC section 2406 requires glazing material located in human impact locations to comply with
16 CFR 1201.
Federal Register
An Internet-based search for changes to
16 CFR 1201 in the 2003 or 2004 issues of the Federal Register did not identify any proposed changes to this standard.
Employee Trust Funds
Subject
The State of Wisconsin Group Insurance Board (Board) offers a group health insurance program to local government employers including the same health plans, such as Health Maintenance Organizations (HMOs) that are available to state employees in the area. Under
2003 Wis. Act 33, the Board is now required to place each of the offered plans into one of three premium contribution tiers for state employees. The intent of this Act is to contain rising health insurance costs and encourage plans to become more efficient. This proposed rule change would allow local government employers to adopt the same tiered structure for premium contributions, although the minimum required percentage paid by local government employers might differ from the state's percentage.
Objectives of the rule. The objective of this proposed rule is to allow local employers access to a tiered contribution rate structure established by the Board, while leaving each local governmental unit the choice to continue operating under the contribution structure that currently exists.
Policy analysis
At present, local government employers are required to contribute an amount between 50% and 105% of the lowest cost qualified plan towards the health insurance premiums of their insured employees –– other than part-time employees and retirees, who are covered under other contribution rules. The existing rule was loosely based on former s.
40.05 (4) (ag) 2., Stats., which set the state's premium contribution for its employees at the lesser of 90% of the Standard Plan premium or 105% of the least costly qualifying plan within the county, but not more than the total amount of the premium. The state's contribution could be modified through collective bargaining. However, s. 40.05 (4) (ag), Stats., was repealed and recreated by
2003 Wis. Act 33 with the intent to alter employer contributions towards health insurance effective January 1, 2004. This Act also amended s.
40.51 (6), Stats., to now require the Board to place each of the offered plans into one of three tiers. The tiers are separated according to the employee's share of premium costs.
Under the new law enacted by
2003 Wis. Act 33, the State of Wisconsin's minimum premium contribution for its insured full-time employees is 80% of the average premium cost of plans offered in the tier with the lowest employee premium cost. The Board has not yet determined whether this 80% minimum is the appropriate percentage to apply to local government employers, and the final percentage in the rule will depend in part on comments received on the proposed rule.
The proposed rule change itself does not alter local government premium contributions, and it would continue to allow local government employers to base their employer contributions solely on the 50-105% formula. However, the rule change would allow local government employers more options in setting their future contributions. Many local government employers base premium contributions on collectively bargained agreements. The proposed rule cannot impair existing contracts, so it would have no effect on contracted premium contributions until the existing agreements expire, are amended or otherwise renegotiated.
While a local government employer could theoretically adopt a tiered premium contribution strategy under the current rule, the contributions must still fall within the parameters of the 50-105% formula. Consequently, the tiered premium structure that local government employers could offer to their employees could might be less cost effective, and more difficult to administer, than the type of structure that state employers can now offer.
Policy alternatives to the proposed rule
(1) Take no action.
DETF could allow the present administrative rule to continue unchanged. This alternative would limit the strategies available to local government employers to contain health care insurance costs.
(2) Modify rule to a span greater than 50% and 105% of lowest cost plan.
DETF considers it undesirable to modify the rule to allow employers to pay less than 50% and/or more than 105% of the lowest cost qualified plan, since this particular structure may now be less effective than the tiered model for encouraging plans to become more cost effective.
Statutory authority
Staff time required
DETF estimates that state employees will spend 25 hours developing this rule.
Description of all entities affected by the rule
The proposed rule change would affect Wisconsin local government employers who choose to participate in the State of Wisconsin Group Health Benefit Program and potentially affect their insured employees.
Comparison to federal regulations
There appear to be no existing or proposed federal regulations directly affecting the Wisconsin local government employer's health insurance premium contribution provisions.
Office of State Employment Relations
Subject
Objective of the rule. Changes to ch.
ER 3 governing classification actions to provide language referencing the Compensation Plan.
Deletion of ch.
ER 4 governing grants to day care providers to repeal obsolete language.
Changes to ch.
ER 8 governing the Entry Professional Program to remove annual reporting requirements.
Changes to ch.
ER 10 governing leave time for Limited Term Employees (LTEs) to vote, making the provisions consistent with statutory language that requires paid leave be granted to employees to vote if the only time they can do so is during work hours.
Changes to ch.
ER 18 governing leave time to vote, catastrophic leave, annual leave, continuous service, annual leave conversion options, and minor and technical rule changes to:
•
Provide catastrophic leave eligibility provisions that allow unclassified employees to participate, as authorized by s.
230.35, Stats.
•
Provide annual leave language that is consistent with recent changes to s.
230.35, Stats., giving employees an accelerated leave schedule if they are in exempt status under the Federal Labor Standards Act (FLSA).
•
Provide continuous service language that is consistent with recent changes to s.
230.35, Stats., giving uninterrupted continuous service (adjusted for any break in service) to employees who return to state service after July 1, 2003, if they have or acquire FLSA exempt status.
•
Provide annual leave conversion option language that is consistent with recent changes to s.
230.35, Stats., for employees at the 216-hour annual leave level.
•
Repeal annual leave conversion option language that requires proration for part-time employees whose eligibility is based on accumulation of 520 hours of sick leave.
•
Provide language that grants 5-year eligibility in provisions that now have 3-year or 5-year eligibility based on the effective date of the eligibility.
•
Provide language that will make ER rules consistent with statutory language that requires paid leave be granted to employees to vote if the only time they can do so is during work hours.
•
Add bone marrow and organ donation language that is consistent with s.
230.35, Stats.
Changes to ch.
ER 29 governing pay on appointment, and minor and technical rule changes or additions to:
•
Provide language that indicates the Compensation Plan should be referenced for nonrepresented employee compensation administration.
•
Repeal language regarding 6-month increases for project appointees.
•
Provide language that allows a current classified state employee to be appointed to another classified position using Hiring Above the Minimum (HAM).
•
Provide language clarifying that “last rate received" in the pay on reinstatement provisions does not include present rate of pay.
•
Provide language that grants 5-year eligibility in provisions that now have 3-year or 5-year eligibility based on the effective date of the eligibility.
Changes to ch.
ER 34 governing project employment to provide language referencing the Compensation Plan.
Changes to ch.
ER 44 governing new supervisor training to repeal obsolete language that requires OSER approval regarding aspects of new supervisor training.
Policy analysis
Compensation administration provisions for nonrepresented employees are now provided in the Compensation Plan. Therefore, the related reference in s.
ER 3.03(4) should include the Plan.
Sec. 230.048, Stats., has been repealed. OSER no longer is authorized to have a program for grants to day care providers and an appropriation is no longer provided. Therefore, ch.
ER 4 no longer is necessary.
The use of the Entry Professional Program has been reduced, significantly diminishing the need to provide separate information on it for the annual affirmative action report. Therefore, s.
ER 8.03 no longer is necessary.
In accordance with s.
230.35(4e), Stats., employees
shall be given paid leave to vote if the only time they can vote is during work hours. Sec. ER 10.02 (4) says that LTEs can only be paid for hours worked. Changes to s.
ER 10.02 (4) are necessary to make them consistent with the statute.
Changes in s.
230.35 (2r), Stats., removed statutory restrictions that allowed only classified employees to participate in a catastrophic leave program established in the rules of the Director of the State Office of Employment Relations. This was done to allow unclassified employees to participate. Section
ER 18.15 governs catastrophic leave participation and rules, but currently applies only to classified employees. Therefore, changes to s.
ER 18.15 are necessary.
2003 Wisconsin Act 22 changed s.
230.35 (1m), Stats., to allow employees with FLSA exempt status to receive the accelerated annual leave schedule previously only granted to career executives, attorneys, and certain unclassified positions. Changes to s.
ER 18.02 (3) are necessary to make it consistent with the statute.
The change created by Wisconsin Act 22 also expanded the group of employees whose continuous service is considered uninterrupted under s.
230.35 (1m) (f), Stats., to include those with FLSA exempt status. Changes to s.
ER 18.02 (2) (b) 6., will provide language consistent with the statute.
2003 Wisconsin Act 117 changed s.
230.35 (1p), Stats., to increase the annual leave option hours from 80 hours to 120 hours for those employees at the 216-hour annual leave rate. Changes to s.
ER 18.02 (5) are necessary to make it consistent with the statute.
Section
ER 18.02 (5) also requires proration of annual leave options for nonrepresented employees who have worked less than 2088 hours in a calendar year no matter how eligibility is acquired. Collective bargaining agreements do not have any requirement to prorate for working less than 2088 hours if the eligibility is based on accumulation of 520 hours of sick leave, and there is no apparent justification for treating nonrepresented employees differently. Removal of the proration requirement for annual leave options if the eligibility of a nonrepresented employee is based on accumulated sick leave will provide parity and uniformity, and simplify administration of the annual leave option process.
Effective July 5, 1998, reinstatement eligibility and other eligibility historically tied to reinstatement, was increased from 3 years to 5 years. Because more than five years have passed, a distinction between 3-year eligibility and 5-year eligibility is no longer necessary. Changes to all provisions noting the distinction should now be made to simplify the eligibility to be 5 years in all cases. Therefore, changes to s.
ER 18.02 (2) regarding continuous service and s.
ER 18.03 (5) regarding sick leave credit continuation are necessary.
In accordance with s.
230.35 (4e), Stats., employees
shall be given paid leave to vote if the only time they can vote is during work hours. Sec. ER 18.11 says employees
may be given paid leave. Changes to s.
ER 18.11 are necessary to make it consistent with the statute.
Except for s.
ER 29.05, all compensation administration provisions for nonrepresented employees are now provided in the Compensation Plan. Therefore, ch.
ER 29 should indicate when reference to the Compensation Plan is appropriate.
The language describing the 6-month increase for project appointees in s.
ER 29.03 (2m) is no longer applicable, and therefore, should be deleted. Section E., 3.01 of the 2003-2005 Compensation Plan states that projects are not eligible for a 6-month increase.
The language describing the pay for various appointments in s.
ER 29.03 does not include any provision for use of HAM for current classified employees. Pay on appointment flexibility has been provided for broadband pay schedules and should also be provided for non-broadband schedules. Due to the labor market, many employees new to state service are being hired at pay rates higher than those being paid to current employees. Changes to s.
ER 29.03 are necessary to allow current employees with the same skills and experience to be paid the same as a new employee would be paid upon an original appointment.
The language describing pay on reinstatement in s.
ER 29.03 (6) states that “last rate received" is “the highest base pay rate received in any position in which the employee held permanent status." The intent of this language was to include only previously held positions, not the employee's current position. Changes to s.
ER 29.03 (6) are necessary to more clearly state that intent.
Effective July 5, 1998, reinstatement eligibility and other eligibility historically tied to reinstatement, was increased from 3 years to 5 years. Because more than five years have passed, a distinction between 3-year eligibility and 5-year eligibility is no longer necessary. Changes to all provisions noting the distinction should now be made to simplify the eligibility to be 5 years in all cases. Therefore, changes to s.
ER 29.03 (6) regarding reinstatement are necessary.
Compensation administration provisions for project employees are now provided in the Compensation Plan. Therefore, related references in ss.
ER 34.04 and
34.05 should be to, or include, the Plan.
Sec. 230.046, Stats., has been amended so that agencies no longer need to get OSER approval to offer their own basic supervision courses, to waive the basic supervision requirements, and for an agency's training tracking system. Sections
ER 44.03 (1) and
(2) and
44.07 (2) reflect prior law and are inconsistent with current law. Therefore, changes to those sections of ch.
ER 44 are necessary to make them consistent with the statute.
Statutory authority
Section
230.04, Stats., charges the Director of the Office of State Employment Relations with the effective administration of ch.
230, Stats., and the promulgation of rules related to the performance of the Director's duties.
Section
230.046 (2), Stats., requires appointing authorities to ensure that each classified service supervisor completes a supervisory development program.
Section
230.35 (2r) (b), Stats., allows the Director of the Office of State Employment Relations to establish, by rule, a catastrophic leave program.
Comparison to federal regulations
There are no comparable existing or proposed federal requirements that address the issues outlined in these proposed rule revisions.
Staff time required
The estimated time to be spent by state employees is 120 hours. No other resources are necessary.
Office of State Employment Relations - Division of Merit Recruitment and Selection
Subject
Objective of the rule. Changes to ch.
ER-MRS 8 governing the Entry Professional Program to remove annual reporting requirements.
Changes to ch.
ER-MRS 12 governing certification and appointment to more accurately reflect the types of certification requests received.
Changes to ch.
ER-MRS 12 governing the Disabled Expanded Certification (DEC) program to:
•
More clearly define those eligible for the program.
•
Require the participant to verify eligibility for every job category for which he or she applies.
•
Accurately reflect those professionals who are qualified to diagnose and verify eligibility for the program.
Changes to ch.
ER-MRS 14 governing promotion to:
•
Allow the appointing authority the discretion to treat an appointment as a promotion.
•
Provide language referencing the Compensation Plan.
Changes to ch.
ER-MRS 15 to clarify that involuntary transfers within the same employing unit of an agency are permitted and to provide that involuntary transfers between different employing units within the same agency are also permitted.
Changes to ch.
ER-MRS 16 governing reinstatement and restoration to remove obsolete language regarding 3-year eligibility for reinstatement resulting from terminations prior to July 5, 1998.
Changes to ch.
ER-MRS 17 governing demotion to
•
repeal language that requires the appointing authority to provide the DMRS administrator with copies of letters referencing notice of demotion and an employee's acceptance of a demotion.
Changes to ch.
ER-MRS 22 governing layoff to remove incorrect references, clarify application of the rules in particular situations, and correct sentence structure.
Changes to ch.
ER-MRS 24, governing the code of ethics to update the definition of “state property."
Changes to ch.
ER-MRS 32 governing acting assignments to repeal language requiring the appointing authority to provide the DMRS administrator with acting assignment notices. The rule order may also include modifications to various provisions of the ER-MRS rule to delete obsolete references, correct cross-references, clarify language or make other minor, technical changes.
Policy analysis
The use of the Entry Professional Program has been reduced, significantly diminishing the need to provide separate information on it for the annual affirmative action report. Therefore, s.
ER-MRS 8.26 is no longer necessary.
References to a prescribed form for certification requests will be removed. Certification requests may be submitted in a variety of forms, both on paper and electronically.
New language will be added to the definition of disability that requires the applicant to explain how the disability affects his or her ability to work. In the case of those who are regarded as having a disability, the applicant will explain why he or she is perceived or regarded as having a disability. These changes will more clearly define those eligible for the program.
The definition of disability will be modified to indicate that the impairment must be related to the specific job or category of jobs for which the applicant is applying. This change will clarify that the applicant must submit a verification form for every job category for which he or she applies.
The list of qualified professionals will be modified to include only those who are certified to give a diagnosis on an individual's condition. This change will provide a more accurate list of those professionals who are qualified to diagnose and verify eligibility for the program.
Under certain conditions, an appointment from a register currently must be considered a promotion even though the appointee has reinstatement eligibility. Changes are needed to give the appointing authority the discretion to treat the appointment as a promotion.
Determining the rate of pay on promotion needs to include references to the Compensation Plan. Therefore, related references to s.
ER 29.03 in ch.
ER-MRS 14 should include the Plan.
The reference to “or is transferred" when referring to a transfer within an employing unit will be modified to clearly state that this means an involuntary transfer, and the language regarding transfers between employing units of an agency will be modified to permit involuntary transfers. These changes will make it clear that transfers and involuntary transfers within an agency are treated in the same manner.
Sections
230.25 (3) (a),
230.31 (1) (intro) and
(a),
230.33 (1) and
230.40 (3), Stats., were amended by
1997 Wisconsin Act 307 to increase the reinstatement eligibility period for state employees from 3 years to 5 years, effective July 5, 1998. Because more than 5 years have passed, a distinction between 3-year eligibility and 5-year eligibility is no longer necessary. Removal of all provisions noting the distinction should now be made to simplify the eligibility to be 5 years in all cases. Therefore, changes to ch.
ER-MRS 16 are necessary.
The language will be modified to eliminate various requirements that agencies submit copies of transactions to the administrator, specifically when the appointing authority notifies the employee of a demotion or when the employee accepts a demotion within an agency or between agencies. The process will be better served by the appointing authority keeping a copy of these transactions in the employee's personnel file.
The language will be modified to eliminate two incorrect references to the administrator, to clarify application of the rules in certain situations, and to correct sentence structure.
The definition of “state property" should be updated to reflect technology-based resources. Therefore, changes to ch.
ER-MRS 24 are necessary.
The language should be modified to eliminate the requirement that the appointing authority submit a copy of the acting assignment notice to the administrator. The process will be better served by the appointing authority maintaining a copy in the employee's personnel file.
Statutory authority
Section
230.05 (5), Stats., grants the Administrator of the Division of Merit Recruitment and Selection general authority to promulgate rules on provisions for which the administrator has statutory responsibility.
Section
230.25 (3) (a), Stats., as amended by Wisconsin Act 307, provides that the reinstatement eligibility period for state employees is five years.
Section
230.25 (1n) (a), Stats., permits the Administrator of the Division of Merit Recruitment and Selection to engage in expanded certification.
Section
19.45 (11) (a), Wis. Stats., requires the Administrator to promulgate rules to implement a code of ethics for certain classified and unclassified state employees.
Comparison to federal regulations
There are no comparable existing or proposed federal requirements that address the issues outlined in these proposed rule revisions.
Staff time required
The estimated time to be spent by state employees is 200 hours. No other resources are necessary.
Health and Family Services
Subject
The Department proposes to modify chapter HFS 139 and chapter HFS 140 relating to public health professionals employed by local health departments and public health services of local health departments.
Policy analysis
Chapter
HFS 139, which identifies and prescribes qualifications for certain professional employees under the authority of ss.
250.04 (7),
250.06 (1), and
251.06 (3) (e), Stats., was last updated effective August 1, 1998. Chapter
HFS 140, which prescribes the required services of local health departments under the authority of s.
251.20, Stats., was last updated effective August 1, 1998. Portions of these chapters lack clarity, are redundant or require redundant implementation, or do not reflect current or desired practices or requirements, including the objectives of Wisconsin's current public health plan: "Healthiest Wisconsin 2010". The department proposes to update chs.
HFS 139 and
140 to alleviate these issues and to create requirements concerning interim local health officers.
Sections 227. 11 (2), 250. 04 (7), 250.06 (1), 251.06 (3) (e) and 251.20, Stats., authorize the department to draft rules relating to public health professionals employed by local health departments and required services of local health departments.
Staff time required
The Department's Division of Public Health convened an 18-member workgroup. The workgroup consisted of eight state public health staff and ten local health officers. Each of the five Division of Public Health regions and each of the three local health department levels were represented. Approximately 80 hours of staff time will be required to develop the rule.
Comparison to federal regulations
At this time, the department is unable to identify comparable federal regulations that address qualifications of public health professionals or required services of local health departments.
Health and Family Services
Subject
The Department proposes to repeal and recreate ch.
HFS 159, rules relating to asbestos certification and training accreditation.
Policy analysis
In 1987, legislation was passed that authorized the first asbestos rule. Chapter
HFS 159 was revised several times prior to 1995 to comply with regulations of the U.S. Environmental Protection Agency (EPA) for training and certification programs and to add reduced training and certification requirements for asbestos roofers. Certification fees have not been increased since the program began.
Chapter
HFS 159 requires individuals to complete training and obtain certification from the Department before they conduct asbestos management or any activity that disturbs asbestos-containing material in or on school buildings, or other buildings. Currently, certification is not required for small operations and maintenance jobs or for work in an owned or leased residential building having fewer than 10 dwelling units when the work is done by the owner or the owner's employees or by the lessee or the lessee's employees.
The Department's goals in repealing and recreating ch.
HFS 159 are as follows:
•
Revise training and certification requirements to be clear and consistent with federal asbestos regulations issued by EPA and the U.S. Occupational, Health and Safety Administration (OSHA).
•
Reduce the regulatory burden whenever possible, while continuing to protect citizens and the environment.
•
Reduce the impact of certification application processing time on an individual's ability to work.
•
Increase coordination with the Department of Natural Resources (DNR) to eliminate duplication of effort.
•
Assist schools in complying with federal school asbestos regulations administered by EPA.
•
Increase revenues using a method that collects a larger share from persons requiring more services or more monitoring.
After reviewing the current rule and other pertinent asbestos regulations, the Department proposes the following:
1.
Redefine scope of rule to follow language of OSHA work categories and to eliminate subjective terms such as “small". Although OSHA-compliant training and work practices are always required when disturbing asbestos-containing materials, this proposal is expected to eliminate certification requirements for some activities.
2.
Add options for category-specific training and certification for Class II asbestos work involving removal of intact asbestos-containing siding, such as transite siding, and asbestos-containing resilient flooring, as allowed under EPA and OSHA regulations. Under the current rule, roofing removal may be conducted by certified roofing workers (1 day of training) and roofing supervisors (2 days of training), but flooring and siding removal may be conducted only by certified asbestos workers (4 days of training) and asbestos supervisors (5 days of training). By treating siding and resilient flooring the same as roofing, the Department proposes to reduce the regulatory burden on persons who remove intact asbestos-containing siding or resilient flooring materials.
3.
Add asbestos company certification requirements and specific responsibilities for asbestos-disturbing work. The current rule only requires individuals to be certified, although many other states require companies to be certified. This proposal allows the Department to take an enforcement action against the business rather than the employee whose activities are being directed by management.
Statutory authority
The Department's specific authority to promulgate these rules is under ss.
254.20-
254.21, Stats.
Comparison to federal regulations
The Department's program for asbestos certification and training accreditation is authorized by EPA and must be no less stringent than EPA's Model Accreditation Plan under Appendix C to Subpart E of
40 CFR Part 763.
The following federal EPA regulations also apply to asbestos work:
-
40 CFR 763, Subpart E, which regulates asbestos-containing materials in schools;
-
40 CFR 763, Subpart G, which provides for asbestos worker protections for certain state and local government employees who are not protected by OSHA regulations.
-
40 CFR 61, Subpart M, National Emission Standards For Hazardous Air Pollutants, which regulates asbestos emissions.
The following federal OSHA regulations apply to asbestos work:
-
29 CFR 1910, which provides standards for asbestos work in general industry.
Staff time required
The Department estimates it will take 40 hours of staff time to prepare the proposed rule for submission. A preliminary draft of the rule will be released to the asbestos industry and interested parties for preliminary review and comment before the proposed rule is finalized and formally submitted for hearing and comment.
Public Instruction
Subject
Objective of the rule. Section
118.43 (6m) requires the department to promulgate rules to implement and administer the payment of state aid under the SAGE program. The proposed rules will clarify the low-income reporting process and timelines and describe an aid proration process to be used, if necessary. Currently, the law provides for payment of aid for each low-income pupil enrolled in grades K-3 in schools participating in the SAGE program and limits the payment to $2,000 for each low-income pupil.
Policy analysis
The department computes SAGE aid on a current year basis from information submitted by participating schools in the fall of each year. Schools are asked to report the number of students enrolled in the SAGE grades as of the third Friday in September – the same day as the department collects enrollment and membership information for state aid and other reporting purposes.
The proposed rules will codify the current administrative practice of asking schools to report and claim aid only for pupils actually enrolled on the third Friday in September by submitting an initial count of low income pupils by mid-October to enable the department to provide an aid estimate for the year to all schools. The proposed rules will clarify the process by which the initial count can be: 1) amended to correct reporting errors and 2) updated to add to the count low income pupils present on the third Friday of September those for whom documentation of low income status was not available at the time the initial count was submitted. The new process may be able to use the new student reporting system expected to be implemented in the fall of 2004.
Policy Alternatives
Statutes require the department to promulgate rules to implement and administer the payment of SAGE aid. Therefore, there are no alternatives.
Statutory authority
Staff time required
The amount of time needed for rule development by department staff and the amount of other resources necessary are indeterminable. The time needed to create the rule language itself will be minimal. However, the time involved with guiding the rule through the required rule promulgation process is fairly significant. The rule process takes more than six months to complete.
Comparison to federal regulations
The law defines “low income" as the definition used by the LEA for the purposes of targeting Title I funds under ESEA (the law references
20 USC 2723 – that section of federal law appears to have been repealed and replaced by 20 USCA 6313 (a) (5)).
